Interest theory of rights, a summary and evaluation

Theoretical Foundation of Human Rights: What is the interest theory of rights? Does this theory fail to answer any important questions?

“If the concept of human rights is universal, that is, possesses a validity which is good for all places and for all times, then it is apparent that there is a significant disparity in the way in which these rights are concretised from place to place and from time to time. While the idea of human rights may have a discernible homogeneity, perhaps derived from some kind of natural law theory or social theory, it is nonetheless clear that the implementation of these rights by states lacks a corresponding identity.” (Davidson, 1993:89)

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Both international relations and moral theories feature prominent debate on the concept and the purpose of human rights yet there appears little by way of consensus with regards to what these rights mean, where the judicial boundaries of action and inaction meet or how to implement the utilitarian principles first adopted by the United Nations in response to the humanitarian horrors witnessed during World War Two. The crux of this theoretical problem resides in the evolution of the concept of human rights – an evolution that has worked in tandem with the evolution of liberal democracy in the West since 1945 when “Western tradition required, as a response to totalitarianism, a reassertion of individual liberty, and for that liberty to be protected by an international law rather than diplomacy.” (Robertson, 2006:29) By this we mean to say that whereas historical notions of human rights were underpinned by the spectre of the state and the state’s ability to defend persecuted minorities, contemporary notions of human rights have moved beyond the confines of the state and the public sector to incorporate the private citizen and the defence of his or her individual human rights (as opposed to the collective human rights of a people or a state). This is a reflection of the shifting paradigms that have affected liberal democracy at the dawn of the twenty first century where the merging of the public and the private sectors has created a moral, judicial and ideological black hole into which uncertainty and indecision have stepped.

The following essay seeks to look at the ways in which this political sense of uncertainty has pervaded the ideological sphere of human rights where according to Saladin Meckled-Garcia and Basak Cali (2005:10-30) the human rights ideal has become ‘lost in translation.’ We propose to look in particular at the ‘interest’ theory of rights, analysing the ways in which it has helped to shed new light on the topic of human rights in general while at the same time highlighting its theoretical flaws. A conclusion will be sought that attempts to underscore the link between rights, indecision and inaction particularly when we view the issue from an international perspective. Before we can begin, though, we need to offer a definition of the interest theory of rights.

The interest theory of rights was first proposed by Bentham (1987) who argued that a person has a distinctive human right when others have duties which protect one of that person’s interests. Thus, viewed from the perspective of the interest theory of rights, “human rights takes their role to be to protect a person’s basic interests.” (Pogge, 2007:186) This constitutes the most fundamental interpretation of human rights within the liberal democratic ideological framework alluded to in the introduction, falling within the theoretical parameters of what Meckled-Garcia and Cali (2005:10) refer to as the ‘normative rights model’ (NRM) which “identifies features or aspects of our humanity which contribute to our well being and which are vulnerable to the actions of others.”

The interest theory of rights therefore seeks to safeguard these features or aspects of our humanity by protecting a citizen’s rights against wrongdoing from another citizen within the same social, political and judicial framework. That it is to say that if, for instance, it is in one’s interests to not to be physically assaulted then, as far as the interest theory is concerned, it is the responsibility of both the individual and the state to ensure that this does not happen lest the basic interests of another individual be impinged upon. Moreover, there is, as Meckled-Garcia and Cali (2005:11) declare, “no principled difference is made between individual and collective.” This is in direct contrast to international human rights law (IHRL) where only the state can impinge upon the basic human rights of individuals or groups of individuals living within that sovereign state.

As a consequence, we can see that the first and most prominent drawback to the interest theory of rights is that there exists such a wide divergence between theory and practice; between the interpretation of the rights and responsibilities of the individual citizen versus the interpretation of the rights and responsibilities of the sovereign state. This is to say that while the interest theory of rights brings to the fore important concepts relating to the synthesis of the values pertaining to liberty, community and mutuality – concepts which Francesca Klug (2000) refers to as values for a ‘godless age’ – it falls of short establishing important criteria with regards to who these rights apply to (the rights holder), who these rights impose duties upon (the duty bearer) and what exactly these duties entail. Therefore, we can see that, rather than seeking to impose values for a godless age, interest theories relating to rights merely help to perpetuate the misunderstanding and the misconception of the ideal of human rights so that the definition, interpretation and subsequent implantation of rights remains an ideological and theoretical quagmire (Cali and Meckled-Garcia, 2005:1‑9). As a result, we can deduce that the first and most prominent failure of the interest theory is that it does not address the concept of establishing a universal concept for human rights and that it fails to address the question of what human rights are and how they are best protected. Addressing the moral aspect of human rights at the expense of the broader legal and judicial imperative only ensures additional questions will be raised as to the purpose of rights as a social, cultural and political ideal.

We can also declare that the interest theory of rights is, in its bid to politicise every sphere of human relationships and human interaction, wholly incompatible with international human rights law because “international law, by its nature, contains traits which alter the nature of human rights provisions” (Meckled-Garcia and Cali, 2005:23). That is to say that, as a branch of international law, international human rights law is distinct from domestic law of sovereign states that act as the defining means of arbitrating power between individuals on a state by state basis. Yet, as is the case with all law, human rights law clearly and identifiably differs when the concept is transferred from territory to territory; state to state. Human rights in the United Kingdom are, for instance, an inherently different moral concept from human rights in the United States where the boundaries between the legal and the illegal are set by democratically elected domestic governments. Likewise, there are distinct judicial differences between domestic human rights law and international human rights law, certainly in the application and exaction of these laws on a worldwide basis.

“Unlike domestic legal systems, there is no such legislature (making laws for the entire international community) nor is there an executive which enforces the decisions made by the legislature. There are also no comparable judicial institutions which would try violations of law and award a judgement against the offender.” (Rehman, 2002:15)

This ongoing discrepancy between the ideal of the interest theory of rights and the practical application of this theory across trans-national borders where there is a discernible lack of international consensus with regards to enforcing decisions renders the interest theory an ideologically weak hypothesis. More importantly, we can see further evidence of how the interest theory fails to answer the question of how best to bridge the theoretical divide between domestic human rights law and international human rights law.

We can also find fault in the interest theory of rights when we pause to consider the flip-side of the argument by looking at those rights that are not in the interest rights holder. If, for instance, we consider the legal rights involved in the exchange of property inheritance we can understand the extent to which unwanted goods can be effectively tithed to a person simply because the interest-based law states that it is in the citizen’s best interest to have the property passed down to them. Likewise when we turn our attention to public officials, we can again see the in-built limitations inherent within the interest based right theory. If, for instance, the handing down of custodial sentences was left to solely the best interests of the judge (as opposed to the best interests of the public community whom the judge is supposed to be representing) then the core structures of the criminal justice system would come crashing down with a sense of arbitrary judgement replacing liberal, democratic rule. It is for this reason that Meckled-Garcia and Cali (2005:24) note that:

“The transformation of a moral right into a legal right, as desirable as it may be, comes at a price. A compromise must be struck with other principles in law.”

In this way we can see how the interest theory of human rights represents a paradox whereby in trying to establish a moral imperative to underpin the concept of human rights, the theory has instead given birth to new conceptual confusions with regards to the blurring of the boundaries of the public and the private and the intermeshing of the paradigms of the individual and the state. With this in mind we must now turn our attention towards establishing a conclusion.

Conclusion

The concept of human rights by nature implies a deep-seated association with the concept of interest with the best interests of the individual being intrinsically linked to the ongoing strive for the “state of equality and freedom” between individuals that defines the most basic and fundamental theories of human rights (Freeman, 2002:20). Likewise international law by nature implies a deep-seated association with the concept of interest with the best interests of the sovereign state being the primary determining factor behind the most basic and fundamental theories relating to international relations (Brown and Ailey, 2005:63-77).

However, in the final analysis, there is an equally deep-seated chasm between the interest theory of rights and the practice of translating western moral imperatives (which have grown exclusively in tandem with the evolution of western liberal democracy) on both a domestic and, especially, on an international scale. There must, ultimately, be a limit to the freedom of the individual and a point at which the best interests of the individual have to be subjugated in favour of the best interests of the state. For as long as this theoretical and practical divide exists, we should presume that the interest based theory of rights will remain rooted in the realms of utopia as opposed to flourishing in the realms of realism.

References

Bentham, J. (1987) Anarchical Fallacies, in, Waldon, J. (Ed.) Nonsense upon Stilts New York: Methuen

Brown, C. and Ailey, K. (2002) Understanding International Relations: Third Edition London: Palgrave Macmillan

Cali, B. and Meckled-Garcia, S. (2005) Introduction: Human Rights Legalized: Defining, Interpreting and Implementing an Ideal, in, Meckled-Garcia, S and Cali, B. (Eds.) The Legalization of Human Rights: Multidisciplinary Perspectives London and New York: Routledge

Davidson, S. (1993) Human Rights: First Edition Buckingham: The Open University Press

Freeman, M. (2002) Human Rights: An Interdisciplinary Approach Cambridge: Polity Press

Klug, F. (2000) Values for a Godless Age London: Penguin

Meckled-Garcia, S. and Cali, B. (2005) Lost in Translation: International Law and the Human Rights Ideal, in, Meckled-Garcia, S and Cali, B. (Eds.) The Legalization of Human Rights: Multidisciplinary Perspectives London and New York: Routledge

Pogge, T.W.M. (2007) Freedom from Poverty as a Human Right Oxford: Oxford University Press

Rehman, J. (2002) International Human Rights Law: A Practical Approach London: Longman

Robertson, G. (2006) Crimes Against Humanity: The Struggle for Global Justice: New Edition London: Penguin